In cases where the employees' claims are denied by the Board, the Supreme Court has construed these provisions to mean that the employee is bound by the Board's award, to the same extent as he would be by an adverse arbitration award, and may not obtain judicial review of any kind on the merits of his claim.'

According to the current body of judicial decisions, however, quite the opposite situation prevails where the employee has received a favorable award from the Board. In such instances the carrier may refuse to comply with the award, forcing the employee to institute an enforcement suit under the statute. In such suits, the lower Federal courts have consistently ruled that in spite of the statutory language according "final and binding" effect to awards, the whole dispute is to be heard de novo, thus affording the carrier the right to a complete relitigation of the claim on its merits.

To date the majority of the Supreme Court has not seen fit to pass directly on the question of the scope of review available to carriers in statutory actions to enforce awards of the Board in favor of employees. In spite of its recent line of decisions developing a Federal policy in favor of arbitration of labor disputes; its repeated description, in several recent Railway Labor Act decisions, of the Adjustment Board procedure as constituting "compulsory arbitration"; its comments about the desirability of having these disputes decided by a board of experts in their field; and its comments that nonmoney awards "are made 'final and binding' by section 3 First (m)", the Supreme Court has repeatedly refused to review cases in which carriers were accorded complete review on the merit of awards favorable to employees either monetary or nonmonetary."

Thus, the situation with which railroad employees are presently faced as a result of this developing judicial precedent is as follows:

(1) They are foreclosed from resort to strikes or economic pressure to enforce their grievances or contract claims;

(2) They may not resort initially to the courts to enforce their bargaining agreements, but are limited to the submission of their claims to the Board, as an exclusive remedy;

(3) An adverse award by the Board is final and binding upon the employees, and they are denied any opportunity for a review of the award on its merits;

(4) A favorable award of the Board is not self-enforcing, and if a carrier chooses to refuse to comply with it, the employees' only remedy is to institute a suit in the U.S. district court to enforce the award;

(5) In such court action the carrier is afforded a complete review of the merits of the award, and the whole dispute is tried de novo, as a regular court action, on both the facts of the case and the interpretation of the bargaining agreement, and usually without any limitation on the evidence placed before the court, regardless of whether it had been considered in the proceedings before the Board.

In the light of the judicial interpretation which has been accorded the present statutory provisions with respect to the force and effect of awards of the National Railroad Adjustment Board, the expeditious and fair settlement of grievances and contract claims of employees in the railroad industry is being completely frustrated. The unlimited opportunity afforded carriers to completely relitigate disputes previously submitted to and decided by the Board not only prolongs their ultimate resolution, but defeats the objective of uniform interpretation of labor agreements in the railroad industry by an administrative tribunal having expert knowledge in the field. And the utter inequity of a system of adjudication denying employees any opportunity for review of an adverse decision at the Board level, but affording carriers a completely new trial on all awards favoring employees, is glaringly apparent.

A de novo judicial review of awards of the Board certainly operates to defeat the clear congressional objectives of expeditious settlement of minor disputes and grievances through a statutory system of compulsory arbitration; uniform and consistent interpretation of agreements on the property of a single carrier, or, in the case of multicarrier national agreements, throughout the industry; and the

7 Union Pacific R. Co. v. Price, 360 U.S. 601.

8 Locomotive Engineers v. Louisville & N.R. R. Co., supra.

Railroad Trainmen v. Louisville & Nashville R.R., 334 F. (2d) 79, cert. den.. 12 D. Ed. (2d) 345, rehearing den. 13 L. Ed. (2d) 579.

benefits of the Board's expertise gained through practical knowledge of the railroad industry and its customs and usages.

These so-called "minor disputes" over the proper interpretation and application of agreements are frequently a major source of friction between management and labor, and involve substantial issues with respect to rights and benefits of large groups of employees. For employees to have to wait for years, as is often the case, before receiving a Board decision, and then face the prospect of having a favorable award nullified in an expensive and time-consuming de novo judicial proceeding, is a source of widespread irritation and frustration.

Under the present statutory procedures for handling these disputes, as interpreted by the courts, the Adjustment Board has become an impediment, rather than a help, to the peaceful settlement of these disputes. The concept of a judicial trial de novo is completely opposite to the objective of fair and expeditious disposition of labor disputes. As one State court has observed, if a judicial trial de novo must be given, "the twilight of administrative law is at hand, for the proceedings before the administrative body will be but a perfunctory skirmish, the principal contribution of which will be delay." 10

Faced with these conditions the organizations for whom I speak feel compelled to call upon the Congress for relief. As between the present procedure and that which preceded it, the employees would be better served by the elimination of the Adjustment Board and a return to the earlier methods of disposing of these disputes. Perhaps the effectiveness of the Board could be restored if the Congress makes clear, what we believe was originally intended in the 1934 amendments, that the Board procedure is not exclusive and is not intended to prohibit the use of economic strength to settle such disputes or to facilitate the enforcement of the Board's awards.

It is probably debatable whether either of these alternatives may be the most desirable ones, at least from the standpoint of the public interest and the purpose of the Railway Labor Act to prevent interruption to commerce.

We submit that absent these alternatives there is an urgent need for remedial legislation eliminating the current disparity of treatment of employees and employers in the railroad industry, and according all awards of the Board final and binding effect on the merits of the disputes submitted to it.

H.R. 706 is intended to achieve this objective. It would amend section 3 First (m) of the Railway Labor Act by striking from the second sentence thereof the words "except insofar as they shall contain a money award." That sentence as amended would then read as follows:

"A copy of the awards shall be furnished to the respective parties to the controversy and the awards shall be final and binding upon both parties to the dispute."

The effect of this amendment would be to make money awards as well as nonmoney awards final and binding upon the parties. While this change in the act would remove part of the problem in that it would give the same degree of finality to money awards as to nonmoney awards, it obviously does not remove the objection to the present procedure which requires a trial de novo by the courts in an enforcement action involving both types of awards.

The courts have held that:

"The enforcement provisions, subsection (p), makes no distinction between money awards and nonmoney awards. It refers generally to ‘an order' of the Board with which the carrier refuses to comply. If any order of the Board is to be enforced in a district court, the procedure set forth in subsection (p) must be followed." "1

Therefore, in addition to the change in the language of subparagraph (m). additional changes in the language of section 3 first (p) were adopted before H.R. 706 was reported out by the House Committee on Interstate and Foreign Commerce. These changes achieve the objective of according finality to the Board's determinations, and avoiding protracted litigation of these disputes. As I understand the decisions of most of the lower Federal courts, in the cases that have been brought to enforce the Board's awards, the language in subparagraph (p) to the effect that "the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated" has been interpreted as giving the Board's decisions only presumptive weight. or at most the effect of expert testimony, which the carriers are completely free to rebut

10 General Acc. Fire & Life Assurance Corp. v. Industrial Commission, 223 Wis. 635. 646. 11 Brotherhood of Railroad Trainmen v. Louisville & N.R. Co., 334 F. 2d 79 (1964).

by any testimony or other evidence they care to present bearing on the merits of the dispute.

Accordingly, subparagraph (p) has been amended by striking out above language and inserting before the period at the end:

": Provided, however, That such order may not be set aside except for failure of the division to comply with the requirements of this Act, for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction, or for fraud or corruption by a member of the division making the order."

This amendment, as we view it, eliminates the concept that in an enforcement suit the courts should completely review what the Board has done on the merits and, in effect relitigate the whole dispute. Instead, except for jurisdictional or procedural defects, it provides that the Board's determination on the facts and merits of the dispute, and the rights and legal obligations of the parties, will be conclusive on the courts called upon to enforce its awards and orders.

In concluding this statement I wish to say very frankly that to the employees the existing situation has become intolerable. The labor organizations for whom I am speaking spend a great deal of time and effort and thousands and thousands of dollars handling, preparing, submitting, and arguing cases before the Adjustment Board. We also bear the expense of the labor members on the Adjustment Board itself, as well as on supplemental boards and special boards. The Federal Government spends a substantial sum each year to maintain and operate these various Boards.

I am sure the carriers also spend a considerable amount of money in this area, but through the chain of circumstances and conditions which I have outlined, they are able to use Adjustment Board procedures and the interpretations placed upon the language of the Railway Labor Act by the courts as a device to delay and frustrate one of the basic objectives which prompted Congress to enact the law in the first place: "to provide for the prompt and orderly settlement of all disputes" growing out of grievances or the interpretation or applica tion of rules agreements.

If the employees submit a claim to the Adjustment-Board and it is denied, they have lost the claim and that is it. There is no appeal-no recourse is open to them. But if the Board sustains their claim, they still cannot be sure whether they have won or lost. If the carrier involved chooses not to apply the award, the employees have the dubious choice of either letting the claim die by defaut or of going through an expensive, time-consuming court procedure in trying to enforce the award.

If the court reverses a sustaining award of the Board, as the courts are doing more and more frequently, the employees have indeed spent a great deal of time, money, and effort to get absolutely nowhere.

It is indeed an ironic situation that the employees are free to use their economic strength to obtain a rule they have requested, but once that rule is agreed to and placed in an agreement book, they cannot strike to enforce its application, regardless of how far afield individual carriers may go in applying the rule or how strongly the Adjustment Board may rule in favor of the employees, if a carrier chooses not to apply the rule properly or to accept the Board's award sustaining the employees' claim.

We certainly do not believe that the Members of Congress who established the National Railroad Adjustment Board through the amended Railway Labor Act some 30 years ago, or the representatives of the employees and the carriers who were involved in the passage of this legislation, ever intended to create the chaotic and even ridiculous situation that faces us today. Through the years the carriers have established a highly developed and centralized bureau, the primary purpose of which is to thwart and frustrate in every way possible the basic purposes of this portion of the act. In submitting cases to the Adjustment Board, the employees are not dealing with individual carrier representatives but with a technical and legalistic group whose sole purpose is to ferret out means of defeating claims submitted to the Board.

I cannot overemphasize the opposition of the employees to a continuation of the present highly unsatisfactory method of disposing of unsettled disputes arising under rules agreements.

Mr. Al H. Chesser, of the Brotherhood of Railroad Trainmen, has also submitted testimony in support of H.R. 706 on behalf of his own organization and

of Railway Labor Executives' Association and I wish to assure the committee that I subscribe to what he says with respect to the bill.

I appreciate this opportunity to submit my testimony and I thank you for your consideration.

PREPARED STATEMENT OF AL H. CHESSER, NATIONAL LEGISLATIVE REPRESENTATIVE, BROTHERHOOD OF RAILROAD TRAINMEN

Mr. Chairman and members of the subcommittee, my name is Al H. Chesser. I am the national legislative representative of the Brotherhood of Railroad Trainmen, which is one of the organizations associated with the Railway Labor Executives' Association. I appear here today to testify on behalf of our organization and the RLEA in support of H.R. 706. My testimony deals in large part with the problems of the First Division, which are by far the most acute at the National Railroad Adjustment Board.

This bill proposes two revisions of the Railway Labor Act which are vitally necessary-the one to correct inequity which has existed since passage of the act in 1934-and the other to (1) facilitate reduction in the backlog now existing at the First Division, NRAB, and, (2) help prevent accumulation of another such backlog upon reduction of the present one.

Exhibits are being submitted with this statement which contain evidence supporting what I say.

H.R. 706 is a bill proposing to "amend the Railway Labor Act in order to provide for establishment of special adjustment boards to resolve disputes otherwise referable to the National Railroad Adjustment Board, and to make all awards of the Board final and binding." Passage of the bill will accomplish more than this. It will permit us to withdraw disputes which have been laying in the First Division's files for a number of years and submit them to special adjustment boards on the properties, thereby reducing the backlog at once. Thereafter, under the bill, where a number of cases are commencing to accumulate on a given railroad, we will be able to set up a special board to decide them instead of overloading the First Division and building up another backlog.

I hope to convince you gentlemen of the vital need for this legislation because of the long existing unsatisfactory conditions on the First Division of the NRAB and the lack of adequate provision for corrective measures in the act as it now stands. First, we should see whether there is, as we contend, urgent need for such an amendment to the act.

In view of the fact that the bill expresses its purpose as being “to provide for establishment of special adjustment boards to resolve disputes otherwise referable to the National Railroad Adjustment Board," you are entitled to proof that there are good reasons for our having the right conveyed by the bill. This, in turn, requires a showing that the NRAB is not adequate to handle the job unassisted and that its inadequacies are of so serious a nature that legislative relief must be given.

Evidence contained in our exhibits describes conditions on the First Division which existed from the time it started to function in the latter part of 1934 and follows the story down to the present time. The situation today can be established as a matter of fact by simply stating the performance of the Division with reference to its productivity and the relation of that factor with the size of the backlog of pending cases.

The productivity of the Division is established by the number of cases disposed of each year. Since the Division did not commence work until late in 1934, only 33 awards were rendered that year and we will not count it. Another period of partial activity occurred between September 1945 and July 1946, when the Division was in a dispute because of disagreement between the carrier and labor members on principles not pertinent to this hearing, and we will disregard the years 1945 and 1946 for that reason. During the first 10 years of full-time operation, which are from 1935 through 1944, both figures inclusive, the Division decided a total of 10,090 cases, including 13 which were not assigned numbers. This makes an average of 1,009 awards per year for 10 years.

The Division has had 18 years of full-time operation since it resumed functioning in July 1946, and this period spans the years 1947 through 1964, both inclusive. During those 18 years, the Division has rendered a total of 9.416 awards, which is 674 fewer than was rendered for the preceding 10-year period. The average for the 18 years was slightly more than 523 per year, Before proceeding, it should be further explained that two supplemental boards were

established to function in conjunction with the First Division during the period from October 1949 through March 1953. One of them handled conductors' and trainmen's cases, the other, engineers' and firemen's cases. This means that during this latter period (October 1949 through March 1953) there were three Boards functioning at the First Division on a full-time basis. The full years of operation for these three Boards were 1950, 1951, and 1952. The total awards rendered during those 3 years by all 3 Boards was 2,775, which gives an annual average of 925. This is 84 awards less per year than the original Board decided for a 10-year period.

The railroads changed out their entire representation on the First Division in August and September, 1946. None of the carrier members who worked with the labor members on averaging over a thousand awards a year for the first full 10-year period were on the job when, starting in 1947, the new membership of the Division decided an average of 523 cases per year. The organizations made two changes at about this time. The firemen appointed a new member May 1, 1946,, and the conductors changed members October 1. 1946. If the changes were intended to improve conditions, they failed to accomplish their objective.

This evidence shows a drastic reduction in productivity for the 18 years ending December 31, 1964, but the statistics for the last 6 years-1959 through 1964— are more shocking. The total annual output of the Division for these years was: 1959, 366 awards; 1960, 366 awards; 1961, 322 awards; 1962, 163 awards; 1963, 159 awards, and 1964, 128 awards. The 6-year average of less than 251 per year is bad enough, but of even more significance is the steady decrease from 366 decisions in 1959 to the incredible figure of 128 for the entire year of 1964. The picture continues to get worse. The First Division had a backlog of 4,054 cases on January 1, 1965; the backlog on January 1, 1966 is 4,013. These figures show the backlog was reduced only 41 cases for the year, with a supplemental Board functioning also.

These are facts; they show first, a drop from a 10-year average of 1,009 awards per year to an 18-year average 523 per year, but as of this time, based upon performance for the last 6 years, a steady decrease from 366 to 128 per year. Naturally, this performance has steadily built up a backlog of undecided cases. Records show the cases on hand and undecided increased from 1,095 to 4836 between 1935 and 1941. At the close of 1942, the backlog was 6.092. It was reduced to 1,905 by the end of 1947.

It commenced to rise the very next year, totaling 2,191 at the end of 1948, and cresting at 3,169 in 1955. Establishment of special boards of adjustment, withdrawals for settlement on the property, and so on, reduced it to 2,430 by the close of 1957, but again started to build up so that as of March 1, 1965, the backlog of undecided cases at the First Division totaled 4,089.

The significance of these figures to the organizations whose memberships are waiting for decisions on those 4,089 cases is, when we know the Division has slowed down to an annual output of 128 awards and gives every indication of doing less and less, it is simple arithmetic to determine that, at this rate of progress, the Division will require 32 years or more, just to decide those 4.089 pending cases. This does not allow for those thousands of additional disputes to be filed during the 32 years.

The slowdown by the Division, from an annual average of 1.009 awards per year to 128 was bound to mean longer and longer delays from the time a case was docketed there until the decision was rendered. Exhibit 12 accompanying this statement, starting at page 54 of the exhibits, treats this phase of the situation in some detail. Although what is said there described conditions as of July 31, 1963. the sorry performance record of the Division from then on means it is worse now. I do not want to unduly prolong my statement but. to complete the point I am making, I will summarize briefly, the ages of decided cases as reported at page 55 from our exhibits, which is taken from exhibit No. 12. the report of July 31, 1963, to Congressman John Bell Williams:

The Division had rendered 94 awards from January 1 to July 31, 1963, and the delay, from date of docketing to date of decision was: unexpedited casestotal of 70-averaged 6 years and 7 month; 24 expedited cases (reinstatement of men involved) averaged 11 months. The fastest handling of unexpedited cases was 4 years and 10 months, and the longest delay, 8 years and 11 months. The average age of cases now standing first out for decision, ranges from 7 to 10 years and this in turn means that the claimants will have received a decision